The opinion of the court was delivered by: VAN ANTWERPEN
This case comes before us by way of a motion filed by persons claiming "next friend" standing in which they seek to halt the impending imposition of a state court sentence of death upon the petitioner, Gary Heidnik. Specifically, those claiming "next friend" status seek in forma pauperis status, a stay of execution pursuant to McFarland v. Scott, 512 U.S. 849, 114 S. Ct. 2568, 129 L. Ed. 2d 666 (1994), appointment of federal habeas corpus counsel, and formal next friend standing. This motion was filed on the morning of April 15, 1997, and the execution of petitioner, Gary Heidnik, was scheduled for 10:00 p.m. that same day. Because of the last minute nature of this motion we scheduled an immediate court hearing at 10:15 o'clock a.m. on April 15, 1997 for the purpose of clarifying the issues and determining the status of this matter.
Both counsel noted at our initial hearing that a prior hearing had been held the previous day in the Court of Common Pleas for the First Judicial District to determine whether or not the petitioner, Gary Heidnik, was competent to be executed under the standard of Ford v. Wainwright, 477 U.S. 399, 91 L. Ed. 2d 335, 106 S. Ct. 2595 (1986). At this state court hearing the petitioner, Gary Heidnik, stated that he wanted his execution to proceed. While our court hearing was in progress, word was received that Judge Poserina of the Court of Common Pleas had signed and handed down 38 detailed findings of fact in which he concluded that the petitioner, Gary Heidnik, was competent to be executed. Those findings of fact, along with the record of the state court proceeding, and a curriculum vitae of one of the witnesses in that proceeding, a Dr. O'Brien, have all been filed of record in our court. The decision of Judge Poserina of the Court of Common Pleas, along with his findings of fact and conclusions of law, were appealed to the Supreme Court of Pennsylvania. At the time of our instant Memorandum and Order, the Supreme Court of Pennsylvania has not yet ruled.
In addition to our initial hearing, six on-the-record telephonic conferences were held with all counsel and with Syndi Guido, Esquire, counsel for the Governor and the Pennsylvania Department of Corrections. The first of these was at 12:10 p.m. At that time, Attorney Guido noted that unless a stay was entered, the Department of Corrections was taking the position that it would transport the petitioner to the State Correctional Institution at Rockview where his execution was scheduled to take place. We declined to enter a stay at that point in time. It was also stated by counsel for petitioner that two of the people seeking next friend status were Maxine Davison White, a 19 year-old daughter of petitioner, and his former wife, Betty Heidnik.
The Pennsylvania Department of Corrections began transporting the petitioner Gary Heidnik to the State Correctional Institution at Rockview and we continued an intensive review of the applicable legal standards. We noted that although the state court judge had conducted a detailed analysis of petitioner's competency to be executed under the standard of Ford v. Wainwright, there had been no express findings with regard to whether or not the petitioner had given a knowing, intelligent and voluntary waiver of his right to proceed in federal court under the standard of Whitmore v. Arkansas, 495 U.S. 149, 162, 109 L. Ed. 2d 135, 110 S. Ct. 1717 (1990). There were certainly detailed findings by Judge Poserina of the state court that the petitioner Gary Heidnik did not wish to pursue any further appeals (see Findings of Fact 16, 25 and 27). In the automatic appeal of the petitioner Gary Heidnik's death sentence, the Supreme Court of Pennsylvania noted that "appellant has since expressed his desire to have his execution carried out as expeditiously as possible and has, consequently, instructed counsel not to pursue the aforesaid appeal." Commonwealth v. Heidnik, 526 Pa. 458, 587 A.2d 687, 689 (1991).
We held a hearing in open court from 7 o'clock P.M. to shortly after Midnight on April 15, 1997. By special order the courthouse was kept open to the public during the hearing. At the hearing, the counsel for the petitioner, Gary Heidnik, called three expert witnesses: Dr. Lawson Frederick Bernstein, Jr., Dr. Stewart Wellman, and Dr. Clancy McKenzie. The Commonwealth called Dr. John Sebastian O'Brien, II. The petitioner, Gary Heidnik, was present in court throughout the proceedings, but was not called as a witness. Heidnik was returned to the State Correctional Institution at Graterford at the conclusion of the court hearing. A follow-up on-the-record telephonic conference was held at Noon on April 16, 1997 to make it clear that our existing stay of execution would extend until we rendered our written decision in this matter. An additional follow-up on the record telephone conference was held at 3:30 P.M. on April 16, 1997 to hear argument on the issue of exhaustion and to receive a stipulation that to the extent that exhaustion might apply, the parties stipulated that we could properly consider jurisdictional issues. All proceedings have been transcribed on an expedited basis and filed of record. Late on April 16, 1997 counsel for those seeking "next friend" status made an application for a Certificate of Appealability in the event that we deny their application.
Before we can consider the merits of a legal claim, the persons who seek to invoke the jurisdiction of our court must establish the requisite standing to sue. Whitmore, 495 U.S. at 154. Heidnik's ex-wife, Betty Heidnik, and daughter, Maxine Davidson White, claim standing based not on direct injury but on "next friend" status, which is by no means automatic. To establish next friend status Whitmore requires that "first, a ' next friend' must provide an adequate explanation-such as inaccessibility, mental incompetence, or other disability-why the real party in interest cannot appear on his own behalf to prosecute the action. ... [and] second 'next friend' must be truly dedicated to the best interest of the person on whose behalf he seeks to litigate." Id. at 163. Moreover, the first prerequisite is not satisfied when an evidentiary hearing demonstrates that "the defendant has given a knowing, intelligent and voluntary waiver of his right to proceed, and his access to court is otherwise ...